Azzam bin Nor Akmal v Pendakwa Raya

Appellant(s): Azzam Bin Nor Akmal

Respondent(s): Pendakwa Raya

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Tuan Muniandy a/l Kannyappan

• The appellant was convicted by the High Court on two charges of trafficking in cannabis under Section 39B(1)(a) of the Dangerous Drugs Act 1952, involving 2,805.7 grams found in his vehicle and 3,720.1 grams found at his rented house, and was sentenced to life imprisonment and whipping on each charge.
• The prosecution's case relied on the appellant's direct handover of drugs to the raiding officer, his ownership and control of the vehicle and house keys, and the statutory presumption of trafficking under Section 37(da)(vi) given the quantities involved.
• The defence argued that a third party, Arwin, was the real trafficker who had left the drugs for temporary storage, and that another individual, Nuriyati, present at the first scene, could have shared custody of the vehicle; the trial judge rejected this defence as an afterthought and convicted on both charges.

• Whether the prosecution's failure to call or tender two identified third parties (Nuriyati, a co-occupant of the vehicle, and Arwin, an antecedent arrestee linked to identical drug packaging) warranted an adverse inference under Section 114(g) of the Evidence Act 1950.
• Whether the unresolved involvement of these third parties diluted the appellant's possession from exclusive trafficking dominion to that of a bare custodian or bailee under Section 39A(2) of the DDA.
• Whether, applying the two-tier evaluation framework for trafficking presumptions, the statutory presumption under Section 37(da) of the DDA had been successfully rebutted on a balance of probabilities despite the appellant's established physical possession.

• The Court held that the appellant's physical possession, custody and knowledge of the drugs were unassailably proven, but found that the prosecution's failure to call or tender the two identified and evidentially linked third parties left the hypothesis of shared control or bare custodianship unresolved.
• Applying Section 114(g) of the Evidence Act 1950 and the two-tier framework in Mohd Radhi bin Yaacob v PP, the Court ruled that the presumption of trafficking under Section 37(da) of the DDA was rebutted, as the appellant lacked proven autonomous commercial authority or unilateral power of disposal over the drugs.
• The convictions under Section 39B(1)(a) were set aside and substituted with convictions for possession under Section 6, punishable under Section 39A(2) of the DDA, with sentences reduced to 12 years' imprisonment (concurrent) and 10 strokes of whipping (consecutive) on each charge.